Colman Herman v. Massachusetts Growth Capital Corporation (SPR 20222641)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2022 SPR22/2641 Kim Rugo Maggio, Esq. Senior Counsel & Compliance Massachusetts Growth Capital Corporation Schraff’s City Center 529 Main Street, Suite 201 Charlestown, MA 02129 Dear Attorney Maggio: I have received the petition of Colman M. Herman appealing the response of the Massachusetts Growth Capital Corporation (MGCC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 30, 2022, Mr. Herman requested: 1) Records of all the expenses [a named person] incurred in his capacity as … of the Massachusetts Growth Capital Corporation for the period October 1, 2021 to September 30, 2022. This includes, but is not limited to, the following[:] a) Expense reports, including back-up receipts b) Credit cards statements, including back-up receipts c) Automobile expense records, including back-up receipts d) Any and all other records … including back-up receipts 2) The written employee reimbursement policy of the Massachusetts Growth Capital Corporation[.] The MGCC responded on November 15, 2022. Unsatisfied with the MGCC’s response, Mr. Herman petitioned this office and this appeal, SPR22/2641, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Kim Rugo Maggio, Esq. SPR22/2641 Page 2 December 1, 2022 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The MGCC’s November 15th response In its November 15, 2022 response, the MGCC stated that “…the relevant files are currently in an off-site storage facility temporarily inaccessible while our office is undergoing renovations.” Current appeal In his appeal, Mr. Herman states, “[t]he fact that responsive records are in storage does not release MGCC from its obligation to produce them consistent with the deadlines prescribed by the Massachusetts Public Records Law.” Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. Office of the Sec’y of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2020); see also G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Based on the MGCC’s response, it is unclear why the MGCC cannot retrieve the records responsive to Mr. Herman’s request from the off-site storage facility. The MGCC is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The MGCC must clarify.

Kim Rugo Maggio, Esq. SPR22/2641 Page 3 December 1, 2022 Conclusion Accordingly, the MGCC is ordered to provide Mr. Herman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the MGCC’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman